(Prayer: This RSA is filed under Section 100 of CPC, against the judgment and decree dated 01.10.2024 passed in R.A.No.121/2023 on the file of the Principal Senior Civil Judge and JMFC, Bhadravathi, Shivamogga dismissing the appeal and confirming the judgment and decree dated 01.08.2023 passed in OS.No.211/2018 on the file of the III Additional Civil Judge and JMFC, Bhadravathi, Shivamogga.)

Oral Judgment

1. This matter is listed for admission. I have heard learned counsel for the appellant and learned counsel for caveator- respondent.

2. This appeal is filed against concurrent finding of the Trial Court and the First Appellate Court.

3. The factual matrix of case of the plaintiff while seeking the relief of specific performance is that suit schedule property belongs to defendant and defendant was in financial commitment and hence, offered the suit schedule property for sale in favour of the plaintiff and executed unregistered agreement of sale on 21.04.2011 by receiving an earnest money and subsequently, received additional amount and made an endorsement in Ex.P1-sale agreement and she was always ready and willing to perform her part of contract. But, the defendant did not come forward to execute the sale deed. Hence, she had issued the legal notice and when the defendant did not give any response to the legal notice, without any other alternative filed the suit for the relief of specific performance.

4. The defendant appeared and filed written statement and the only contention taken is that suit is barred by limitation.

5. The Trial Court allowed the parties to lead evidence and considering both oral and documentary evidence comes to the conclusion that there was an agreement of sale and in total, the defendant had received sale consideration of Rs.2,65,000/- and also taken note that there was a condition in the agreement itself that there was a dispute and the defendant has to get it clear the same. The plaintiff, in support of her case examined a witness i.e., document writer as P.W.2 and also a witness to the sale agreement as P.W.3 and both of them have deposed that a sale transaction has taken place and also speak about payment of cash as well as issuance of Cheque. Hence, Trial Court considering both oral and documentary evidence comes to the conclusion that there was a sale transaction and even, taken note of question of law with regard to limitation is concerned and for having received part payment also executed the document of endorsement and particularly in paragraph No.31, taken note of contents of document Exs.P1 and P2 and observed that recital of Ex.P2 makes clear that defendant has to obtain a necessary documents and also intimate about disposal of matter pending before revenue authority and thereafter stimulation period starts and obligation shift upon the plaintiff to pay the remaining balance sale consideration amount within 3 months from the date of intimation. The defendant did not intimate anything about the same and hence, the Trial Court comes to the conclusion that plaintiff was always ready and willing to perform her part of contract and answered issue Nos.1 and 2 as 'affirmative' and issue No.3 as 'negative', since specific defence was taken in the written statement that suit is barred by limitation and the same is answered considering the fact that no intimation was given for having cleared the dispute. Hence, comes to the conclusion that suit is in time and granted the relief of specific performance.

6. Being aggrieved by the judgment and decree of the Trial Court, an appeal is filed before the First Appellate Court in R.A.No.121/2023. The First Appellate Court also having considered the grounds which have been extracted in paragraph No.10, framed the points for consideration and on re-appreciation of both oral and documentary evidence, particularly taking note of the evidence of witnesses, Ex.P1-sale agreement and Ex.P2-shara and also the evidence of P.W.1, no dispute for having received the amount on the date of sale transaction in terms of Ex.P1 and there was also subsequent endorsement for having received the balance sale consideration and the same is discussed in paragraph No.20 that on two occasions, she has received the amount of Rs.60,000/- and Rs.70,000/- by way of Cheque, same was also endorsed on Ex.P1. The subsequent payment is also by way of Cheque only and the appellant herself got encashed the said Cheque and not denied the signatures. With regard to the dispute is concerned, taken note of the same in paragraph No.21, wherein 7 guntas of land was standing in the name of appellant and in respect of remaining area is concerned, there was a dispute. Hence, confirmed the judgment of the Trial Court.

7. Learned counsel appearing for the appellant would vehemently contend that both the Courts have committed an error in appreciating both oral and documentary evidence. The counsel also would vehemently contend that the Trial Court has not considered the issue of limitation and Article 54 of the Limitation Act is very clear with regard to refusal is concerned and failed to consider hardship and the defendant was always ready and willing to perform her part of contract and only an amount of Rs.2,65,000/- was paid and remaining amount was not paid and the plaintiff was not ready to perform her part of contract. Hence, this Court has to admit the second appeal and frame substantial question of law.

8. Per contra, learned counsel for the caveator- respondent would vehemently contend that recitals of document Ex.P1 is very clear that there was a dispute and only after clearance of dispute itself, she has to give intimation to the plaintiff and then, plaintiff has to pay the amount. All these factors were taken note of by the Trial Court and particularly, taken note of shara at Ex.P2 for having received the additional amount by way of Cheque i.e., an amount of Rs.60,000/- and Rs.75,000/-. Hence, it is clear that plaintiff was always ready and willing to perform her part of contract and the defendant herself did not come forward to clear the dispute. Hence, legal notice was issued and filed the suit and it does not require any interference.

9. Having heard learned counsel for the appellant and also learned counsel for the caveator-respondent and considering the material available on record, there is no dispute with regard to very execution of document of sale agreement and only during the course of argument, learned counsel appearing for the appellant would vehemently contend that husband of the appellant was addicted to bad vices and hence, the same was taken advantage by the respondent/plaintiff. In order to substantiate the said contention also, the defendant has not placed any material before the Court. Apart from that the very appellant has received the additional amount of Rs.60,000/- and Rs.75,000/- subsequent to the agreement of sale and endorsement is also made in the shara i.e., Ex.P2 and the same is taken note of by the Trial Court in paragraph No.31 and detailed discussion was made and so also in paragraph No.32 that Exs.P1 and P2 agreement of sale and endorsement, nature of the plaint schedule property and the surrounding circumstances clearly establishes that time is not the essence of the contract, since suit property is an immovable agricultural property. The defendant has failed to perform her part of contract, then the question of time being the essence does not arise. When clear admission was given that no intimation was given for having cleared the dispute and issue No.3 was also discussed in detail that when the defendant refused to perform her part of contract by way of reply notice on 16.04.2018, the plaintiff has filed the suit immediately on 04.06.2018 and Article 54 of the Limitation Act is pressed into service that if there is a time bound period, then time is the essence of contract. But, in the case on hand, time is not the essence of the contract and the plaintiff has to make the payment subsequent to intimation for having cleared the dispute between the defendant and the concerned. When such material is not placed and refusal is only subsequent to issuance of legal notice and Article 54 is clear that within 3 years from the date of refusal, suit has to be filed and suit is filed within 1½ month of reply notice and all these factors were taken note of by the Trial Court as well as the First Appellate Court. Both the Courts have taken note of question of law and question of fact. Hence, I do not find any error on the part of the Trial Court as well as First Appellate Court and the First Appellate Court also in paragraph No.20, in detail taken note of payment and additional payment made by the plaintiff and also endorsement made in shara at Ex.P2. When such being the case, I do not find any ground to admit the second appeal and frame any substantial question of law and even with regard to limitation also, in detail discussed by both by Trial Court as well as the First Appellate Court. Hence, no ground is made out to invoke Section 100 of CPC.

10. In view of the discussion made above, I pass the following:

ORDER

The regular second appeal is dismissed.